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2019
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[2019] ZAFSHC 161
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Nkoebele v Road Accident Fund (5449/2016) [2019] ZAFSHC 161 (15 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5449/2016
In
the matter between:
LEFA
EPHRAIM
NKOEBELE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON
: 12 JUNE 2019
CORAM
:
S.G.MEINTJES, AJ
JUDGMENT
BY
: S.G.MEINTJES, AJ
DELIVERED
:
15 AUGUST 2019
[1]
This case concerned the
plaintiff’s claim against the defendant, claiming damages
for serious bodily injuries he sustained in a motor vehicle accident
on 23 September 2014 at Aliwal Street, Arboretum, Bloemfontein.
Plaintiff was at the time of the accident 31 years old.
Currently he is 36 years old.
[2]
It is to be noted that the merits were already settled between the
parties. The defendant conceded to liability for all (100%)
of
plaintiff’s proven or agreed damages he would prove to have
suffered.
[3]
Defendant also promised to furnish the plaintiff with an undertaking
in terms of section 17(4)(a) of the Road Accident Fund
Act, Act 56 of
1996, for the costs of future accommodation of the plaintiff in a
hospital or nursing home or treatment of or rendering
of a service to
him or supplying of goods to him arising out of the injury sustained
by him in the motor vehicle accident on 23
September 2014, after such
costs have been incurred and upon proof thereof.
[4]
The defendant also agreed to pay the amount of
R
76 035.85
as claimed, for past hospital and
medical expenses.
[5]
Defendant also agreed (at the last minute during arguments), to pay
R
300 000.00
in settlement of plaintiff’s
claim for general damages.
[6]
The plaintiff has received an amount
R
48 800.89
from the Workman’s
Compensation Commissioner.
[7]
The only outstanding issue then to be decided, is to determine the
quantum of plaintiff’s past and future loss of income
or
earning capacity.
[8]
In Road Accident Fund v Guedes 2006(5) SA (SCA) on p586 para(8)
[1]
the court held:
”
It
is trite that a person is entitled to be compensated to the extent
that the person’s patrimony has been diminished in consequence
of another’s negligence. Such damages include loss of future
earning capacity…The calculation of the quantum of a
future
amount, such as loss of earning capacity, is not, as I have already
indicated, a matter of exact mathematical calculation.
By its nature,
such an enquiry is speculative and a court can therefor only make an
estimate of the present value of the loss that
is a very rough
estimate…The court necessarily exercises a wide discretion
when it assesses the quantum of damages due to
loss of earning
capacity and has a large discretion to award what it considers
right. Courts have adopted the approach that,
in order to
assist in such a calculation an actuarial computation is a useful
basis for establishing the quantum of damages.
Even then, the
trial court has a wide discretion to award what it believes is just…”
[9]
No
viva voce
evidence
was led in this matter. Expert reports by Dr. J.J. Schutte
(General Practitioner), Dr. L.F. Oelofse and Dr. T.S.
Bogatso
(Orthopaedic Surgeons), Alana Stroebel and Success Moagi
(Occupational Therapists), Dr. E. Jacobs and Dr. M. Kheswa
(Industrial
Psychologists) and actuarial reports respectively
complied by Munro Forensic Actuaries and NBC Holdings. A Joint
Minute between
Alana Stroebel and Success Moagi was also submitted.
[10]
The contents of all the medical reports relied upon by the plaintiff
i.e the report by Dr. Schutte, both reports by Dr. Oelofse,
both
reports by Alana Stroebel, the report by Dr. Jacobs and the actuarial
report of Munro Forensic Actuaries were not disputed
by the
defendant. The defendant however does not accept the
contingency deductions therein suggested.
[11]
It followed clearly from the report of Dr. Schutte that plaintiff has
a whole-person impairment (WPI) of
7%
,
however according to the narrative test, the plaintiff has a serious
long-term impairment which could cause loss of body function.
It is common cause between the parties that the injuries sustained by
plaintiff are serious and that he consequently qualifies
for
compensation in respect of his claim for damages.
[12]
Dr. Oelofse stated in his report dated 9 October 2018 that
plaintiff would have been able to work until the normal retirement
age of 65 (sixty five) years, if not for the accident and his injury
sustained. He will, after the accident, be able to work
to the
retirement age of 60 (sixty) years, if accommodated in a light
duty/sedentary position. If not so accommodated, he
must not be
allowed to do physical labour again. Plaintiff’s
unfortunate condition, according to him, also deteriorated
since his
first consultation, because he has developed post-traumatic
osteoarthritis of the knee joint and he has a ”probability”
of
50%
for the
degeneration in his knee joint to progress to end-stage
osteoarthritis. There is also a progression of pain and he indicated
the likelihood of knee replacement procedures in future.
[13]
With reference to the Joint Minute between the Occupational
Therapists, Stroebel (for plaintiff) and Moagi (for defendant)
the
following (page 7 and onwards) is of relevance:
“
8.4.The
plaintiff reported the following to both writers:
Pre-accident
employment:
8.4.1
He has work experience as a driver (and in addition as a
Gardener,
as reported to Ms Stroebel) and mainly within the security industry,
previously as a Security Supervisor, an Inspector
and an Armed
Response Officer. We refer …
8.4.2
At the time of the accident in question, he was employed as
an
Armed Response Officer at Chubb Security.
Post-accident
employment:
8.4.3
He remained on sick
leave for a 12- period.
8.4.4
He suffered a loss of income during the periods of absence
i.e.receiving a reduced salary for a few months…and
no salary
until he was accommodated in October 2015.
8.4.5
In October 2015,the plaintiff was accommodated in an
alternative position as a Dispatch Operator.
8.4.6
He suffered a further loss of income when accommodated, i.e. reduced
salary as a Dispatcher, when compared to his salary
as an Armed
Response Officer.
8.4.7
We defer to..
8.5 On the day…
8.6 On the day of
Ms Stroebel’s re-evaluation (5 November 2018), the plaintiff
reported the following:
8.6.1
He remained in the accommodated position as a Dispatch Operator until
he was retrenched in December 2017,when National Security
took over
Chubb Security. Deferral is given…
8.6.2
He remained unemployed for five months, until he was able to secure
employment at Bloem Water on 1 June 2018 as a Security
Guard.”
The
Occupational Therapists agreed that plaintiff’s pre-accident
work as an Armed Response Officer can be categorized within
the
parameters of sedentary to medium work. They also agreed that
considering mobility restrictions, the plaintiff is currently
best
suited for sedentary to occasional light work. Plaintiff does
not meet all the physical requirements of his pre-accident
work as an
Armed Response Officer. They agreed that, even in plaintiff’s
current position as a security guard, he can
be expected to be
disadvantaged with regards to efficiency and effectiveness in
comparison to his uninjured Security Guard peers.
They agreed
that plaintiff’s current residual limitations render him
vulnerable in an open labour market compared to his
pre-injury
abilities and uninjured peers. He is currently considered an
unequal competitor within the open labour market,
with regards to
efficiency and effectiveness when compared to his able-bodied peers.
He will have limitations in meeting
requirements classified as full
range light (i.e. frequent walking and standing demands) and medium
work, considering Dr. Oelofse’s
report, i.e.
“
the
degeneration in his knee joint and the probability that he will
suffer from chronic pain for the rest of his life. Plaintiff
therefor should not presently or in future perform work exceeding
sedentary and occasional light work.”
The
totality of these reports indicating undisputedly that plaintiff, as
a result of the vehicle accident, did sustain a serious
injury,
resulting in a loss of income/earnings because his employability has
been negatively affected by the injury he sustained.
His work
choices are restricted in the open labour market.
[14]
The actuarial report prepared by Munro Forensic Actuaries, stated the
actuarial calculations. The actuary guided by Dr
Jacobs, who
also indicated that plaintiff’s career is at risk.
Plaintiff is since his injury, not regarded as suitable
for a career
in security. It is Dr. Jacobs’s opinion that it is highly
unlikely that he will obtain and sustain a sedentary
position
requiring administrative capacity and skills. Also according to
him
”
there is a significant risk
created by the accident that changed his capacity to earn. He
should be compensated for this.”
To
be read into this, also undisputedly, that plaintiff’s capacity
to earn in future, was also negatively affected by the
accident.
The
actuaries in their report applied the following contingencies:
Uninjured:
5%
and
15%
on past and
future earnings respectively
(R 3 668 685.00)
Injured:
40%
on future earnings
(R 2 308 749.00)
The total loss of
plaintiff’s earnings being
R 1 466
920.00.
[15]
Counsel for the defendant submitted that a
10%
and
15%
contingency deduction on the pre-morbid loss of earnings of
plaintiff, respectively for past and future earnings
(R4
185 735.00)
, and a
25%
deduction on the post-morbid loss of earnings
(R
3 324 725.00)
would be reasonable.
The total loss of earnings
R 861 010.00
.
The actuary institution for defendant in their report, and upon which
it does not rely on, applied a
5%
contingency deduction in respect of the past earnings both in regard
to pre-accident and post-accident and
15%
in
respect in respect of pre-accident future earnings
(R
1 946 029.00)
and
25%
in respect of post-accident future earnings
(R
1 751 119.00)
in their calculations.
[16]
In Road Accident Fund v Kerridge 2019(2) SA 233 (SCA) par 42
[2]
the court held as follows:
”
Contingencies
are arbitrary and also highly subjective. It can be described
no better than the oft-quoted passage in Goodall
v President
Insurance Co Ltd
1978 (1) SA 389
(W) where the court said: “In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably
play a part, for the art or science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and
by authors of a certain type of almanac, is not
numbered among the qualifications for judicial office.”
And in par 43:
[3]
”
It
is for this reason that a trial court has a wide discretion when it
comes to determining contingencies”.
[17]
In order to determine the appropriate contingency deductions, and to
estimate the monetary value of plaintiff’s loss,
the actuarial
calculations of, and the contingencies applied by Munro Actuaries, in
my discretion, should be used as a useful basis,
bearing in mind the
age of plaintiff at the time of the accident and his current age and
the fact that he, as a result of the accident
and injury sustained,
had to engage in less lucrative employment. This calculation in
plaintiff’s circumstances, is reasonable
and just. His
age should be taken into account in respect of both pre-morbid and
post-morbid contingencies. In Bee
v Road Accident Fund
2018 (4)
SA 366
(SCA) par [116]
[4]
the
court said:
“
The
younger the victim the longer the period over which the vicissitudes
of life will operate and the greater the uncertainty in
assessing the
claimant’s likely career path”
.
There
are uncertainties and risks in respect of plaintiff’s
post-morbid circumstances i.e. his career is at risk. It
seemed
he is not suitable for a career in security, and the unlikelihood
that he will obtain and sustain a sedentary position requiring
administrative skills, according to Dr. Jacobs. His adverse health
condition due to his injury, circumstances that therefor should
aggravate contingencies.
[18]
In the result the following order is issued:
ORDER
:
[19]
1) The defendant is ordered to pay the plaintiff the sum of
R
76 035.85
in respect of his past hospital and
medical expenses;
2)
The defendant is ordered to pay the plaintiff the sum of
R
300 000.00
in respect of general
damages;
3)
The defendant is ordered to pay the plaintiff the sum of
R
58 171.11
in respect of past loss of income
(R 106 975.00)
minus
the amount of
R 48 800.89
Workman’s Compensation already received);
4)
The defendant is ordered to pay the plaintiff the sum of
R
1 359 945.00
in respect of future
loss of income;
5)
The defendant is ordered to pay interest
a
tempore morae
at the rate of
10,5%
per annum
from date of judgment to date of
payment if payment is not effected within 14 days of judgment;
6)
Defendant is liable for payment of plaintiff’s taxed or agreed
party and party costs in respect of the merits on the High
Court
scale up to date of this order;
7)
In the event that costs are not agreed, the plaintiff agrees as
follows:
7.1 The plaintiff shall
serve a notice of taxation on the Defendant’s attorney of
record; and
7.2 The plaintiff shall
allow the defendant fourteen (14) court days to make payment of the
taxed costs.
_________________
SG
MEINTJIES, AJ
I
concur.
_________________
SG
MEINTJIES, AJ
On
behalf of the plaintiff: Adv. J.J.F. Hefer
Instructed
by: H.L. Buchner
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. I. Sander
Instructed
by: N. Maduba
Maduba
Attorneys
BLOEMFONTEIN
[1]
Road Accident Fund v Guedes 2006(5) SA (SCA) on p586 para (8)
[2]
Road Accident Fund v Kerridge 2019(2) SA 233 (SCA) par 42
[3]
par 43
[4]
Bee v Road Accident Fund
2018 (4) SA 366
(SCA) par [116]